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Study of the Right of Everyone to Be Free from Arbitrary Arrest, Detention and Exile

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Study of the Right of Everyone to Be Free from Arbitrary Arrest, Detention and Exile STUDY OF THE RIGHT OF EVERYONE TO BE FREE FROM ARBITRARY ARREST, DETENTION AND EXILE United Nations Department of Economie and Social Affairs Study of the right of everyone to be free from arbitrary arrest, detention and exile UNITED NATIONS New York, 1964 Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document. E/CN. 4/826/Rev. 1 UNITED NATIONS PUBLICATION Sales No : 65. XIV. 2 Price : JfU.S. 2.00 (or equivalent in other currencies) 11 NOTE This study on the right of everyone to be free from arbitrary arrest, detention and exile has been prepared by a Committee established by the Commission on Human Rights. Originally submitted to the seventeenth session of the Commission in 1961, the study was revised by the Committee in 1962, incorporating minor correc­ tions and changes in the light of observations received from Governments, as well as including, at the Commission's request, draft principles on freedom from arbitrary arrest and detention. m TABLE OF CONTENTS Paragraphs Page INTRODUCTION 1-30 Terms of reference 1 1 Composition of the Committee 2-3 1 Meetings and reports of the Committee 4-7 2 Co-operation of specialized agencies 8-11 3 Consultation with non-governmental organisations ... 12-14 3 Source material 15-17 4 Country monographs 18-19 4 Arrest, detention, exile 20-22 5 The meaning of "arbitrary" 23-30 5 PART I : FUNDAMENTAL PRINCIPLES 31-68 A. Fundamental laws 31-57 9 1. Types of fundamental provisions on arbitrary arrest, detention and exile 33-52 9 2. Concluding remarks 53-57 17 B. Independence of the judiciary 58-68 19 PART II : ARREST AND DETENTION OF PERSONS SUSPECTED OR ACCUSED OF A CRIMINAL OFFENCE 69-729 22 A. Arrest, detention and provisional release 77-253 1. Arrest 77-134 25 (a) Prerequisites of arrest 82-99 26 (i) Reasonable suspicion of guilt...... 82-84 26 (ii) Nature and gravity of offence 85-87 27 (iii) Existence of grounds justifying arrest . 88-99 28 a. Danger that the suspect or accused will evade the proceedings 89-91 29 b. Danger of obstructing the investigation. 92-93 30 c. Potential danger to society 94-99 30 (b) When arrest is mandatory 100-101 31 v Paragraphs Page (c) The procedure of arrest 102-128 (i) Requirement of prior written order . .102-109 32 a. When a warrant is required 104 32 b. Who may issue a warrant 105-107 32 c. Requisites and form 108-109 33 (ii) Arrest without warrant 110-125 a. Arrest of suspects caught in flagrante delicto 110-115 34 b. Arrest in urgent cases 116-118 35 c. Arrest on reasonable suspicion. .119-120 36 d. Arrest of persons found in suspicious circumstances 121-122 37 e. Arrest by a private person 123-125 37 (iii) Manner of executing arrest 126-127 38 (iv) Resistance to arrest 128 39 (d) Appearance of arrested person before an authority competent to order or confirm his detention 129-134 39 2. Detention pending investigation or trial 135-151 (a) Prerequisites for detention 135-136 42 (b) Authority empowered to order detention. 137 42 (c) Interrogation of the arrested person 138-139 43 (d) Time-limit for issuance of detention order ;. 140 43 (e) Duration of detention 141-144 43 (/) Review of detention 145-150 45 (g) Provisions applicable to special categories of accused persons 151 46 3. Provisional release 152-196 47 (a) Availability of provisional release 154-165 48 (i) Release as a matter of right 157-162 49 (ii) Release as a matter of discretion .... 163-165 50 (b) Conditions of release 166-178 51 (i) Requirement of financial security .... 170-173 52 (ii) Financial security and the indigent accused 174-178 53 (c) Procedures for release 179-189 (i) Mechanics of provisional release .... 179-187 55 (ii) Stages at which provisional release is available 188-189 56 (d) Revocation of provisional release 190-196 57 4. Alternatives to arrest or detention 197-205 58 (a) Summons 198-199 58 (b) Promise to appear when required 200 59 (c) Release into the custody of a responsible third party 201-202 60 VI Paragraphs Page (d) House arrest or detention 203 60 (e) Other measures 204-205 60 5. Concluding remarks 206-253 61 (a) Purposes of arrest and detention 211-215 62 (b) Prerequisites of arrest and detention 216-223 64 (c) Safeguards in arrest procedures 224-236 65 (d) Safeguards in the procedures for detention . 237-244 68 (e) Provisional release 245-248 69 (/) Alternatives to arrest and detention .... 249-251 71 (g) Arrest law and the crime problem 252-253 71 B. Rights of the arrested or detained person 254-486 1. The right of an arrested or detained person to be informed of his rights and obligations 254-259 73 2. Right to be informed of the criminal offence. 260-269 74 (a) Arrest under a warrant or order 261-262 74 (b) Arrest without warrant or order 263-267 75 (c) Detention 268 76 (d) Concluding remarks 269 76 3. The right to communication 270-292 76 (a) Notice of the arrest or detention to relatives or other persons 272-278 77 (b) Keeping a person in custody incommunicado or under similar restrictions 279-283 78 (c) Visits and correspondence in general 284-287 80 (d) Communication with officials and authorities . 288 80 (e) Concluding remarks 289-292 81 4. Right to counsel 293-361 82 (a) Procedures to obtain legal assistance 297-311 83 (b) Periods during which legal assistance is available 312-317 86 (c) Communication between the arrested or detained person and his counsel 318-323 88 (d) Access of counsel to relevant evidence and records; participation of counsel in the pre­ liminary proceedings 324-337 89 (e) Remedies in case of non-observance of legal requirements concerning assistance by counsel. 338-340 91 (/) Concluding remarks 341-361 92 (i) Procedures to obtain legal assistance. 342-346 92 (ii) Periods during which legal assistance is available. 347-350 93 (iii) Communications between the arrested or detained person and his counsel. 351-355 94 (iv) Access of counsel to relevant evidence and records; participation of counsel in the preliminary proceedings 356-359 95 vn Paragraphs Page (v) Remedies in case of non-observance of requirements concerning legal assistance . 360-361 96 5. Rights relating to interrogations 362-457 96 (a) Provisions enabling the arrested or detained person to participate intelligently in the pro­ ceedings (right to an adequate medium of communication) 368-372 97 (b) Manifestations of the free will of the arrested or detained person (right to speak or to remain silent at interrogations) 373-384 98 (i) Right to make statements and to request inquiries 374-379 98 (ii) Right of the arrested or detained person to remain silent 380-384 99 (c) Protection of the arrested or detained person against treatment which tends to impair his free will at interrogations 385-432 100 (i) Types of improper methods of interroga­ tion 388-403 100 (ii) Safeguards against improper methods of interrogation 404-432 103 a. Preventive measures 410-411 103 b. Remedies and sanctions 412-432 i. Criminal penalties 412 105 ii. Disciplinary sanctions 413 105 iii. Award of damages to the victim of coercion 414-415 105 iv. Limitation on the use of confessions and incriminating statements as evidence 416-432 105 (<£) Concluding remarks 433-457 108 (i) Provisions enabling the arrested or detain­ ed person to participate intelligently in the proceedings (right to an adequate medium of communication) 434-435 108 (ii) Manifestations of the free will of the arrested or detained person (right to speak; right to remain silent at interroga­ tions) 436-437 109 (iii) Protection of the arrested or detained person against treatment which tends to impair his free will at interrogations. .438-457 109 a. Types of improper methods of interro­ gation 438-443 109 vm Paragraphs Page b. Safeguards against improper methods of interrogation 444-457 i. Preventive measures 444-448 110 ii. Remedies and sanctions 449-457 111 6. Treatment in places of custody 458-486 113 (a) Place of custody 459-463 114 (b) Health, food, clothing and other amenities. 464-466 115 (c) Protection against compulsory labour . .467-470 116 (d) Measures of restraint, torture and ill-treatment, disciplinary measures and punishment . .471-473 116 (e) Inspection and supervision of places of custody. 474-480 117 (/(Concluding remarks 481-486 119 C. Remedies available to the arrested or detained person and sanctions for the violation of his rights 487-703 121 1. Procedures to terminate wrongful detention and to restore freedom 489-587 121 (a) Main types of remedies 493-505 122 (b) Scope of the remedies 506-528 125 (i) Remedies available when deprivation of liberty is threatened or impending. 507-508 125 (ii) Remedies available against arrests effected without judicial warrant and against vari­ ous acts committed prior to the issuance of a judicial order of detention 509-516 125 (iii) Remedies available against decisions of judges or other examining authorities ordering detention or violating the rights of the detained person 517-528 127 (c) Extent to which the decisions complained of may be reviewed 529-535 130 (d) Rules governing the institution of proceedings. 536-552 132 (i) Who may institute proceedings 537-540 132 (ii) Forms and cost of application and measu­ res to facilitate its preparation and trans­ mittal 541-549 133 (iii) Time-limits for application 550-552 135 (e) Nature of the proceedings and participation of the detained person therein 553-558 136 (/) Burden of proof 559 137 (g) Duration of the proceedings 560-568 138 (h) Effect and enforcement of remedial measures.
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